McMillan, Tanya Marie Warrell

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-88,970-01

EX PARTE TANYA MARIE WARRELL MCMILLAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR14-150 IN THE 4TH DISTRICT COURT
FROM RUSK COUNTY

RICHARDSON, J., delivered the opinion of the Court in which HERVEY,
NEWELL, WALKER, SLAUGHTER, and MCCLURE, JJ., joined. KELLER, P.J., filed a
concurring opinion. YEARY, J., filed a concurring opinion. KEEL, J., concurred.

OPINION

In Ex parte Pue, we decided that the laws and public policy of Texas should be

decided by our Legislature. There, we held that Texas law should define whether a prior

conviction is final for the purposes of enhancing the punishment of an offense under

Section 12.42 of the Texas Penal Code as opposed to another jurisdiction’s law. Ex parte

Pue, 552 S.W.3d 226, 235 (Tex. Crim. App. 2018). Today, we are asked if there was ever

a time prior to Pue when other States were allowed to unilaterally dictate the laws and

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public policy of our State. 1 That answer is no, and we hold that the rule in Pue applies

retroactively. Furthermore, we hold that Applicant’s federal felony conviction was final

under the rule in Pue.

In 2015, Applicant was convicted of theft. Prosecutors used Applicant’s 2001 2

federal felony conviction out of Alaska to enhance the theft offense to a first-degree felony

resulting in Applicant receiving a forty-year sentence and a $10,000 fine. Applicant

contends her 2001 federal conviction was not final when the instant offense occurred;

therefore, the offense was unlawfully enhanced, and she received an illegal sentence.

We filed and set this writ to determine (1) whether Pue, announced a new rule for

purposes of retroactivity; 3 (2) if Pue announced a new rule, whether it is a substantive or

procedural rule; and (3) whether one of the exceptions to the general rule of retroactivity

1
Cf. “No taxation without representation.”
2
The record shows an “Amended Judgement” dated May 13, 2003, showing Applicant
sentenced to 10 months imprisonment and 5 years of supervised release. Both parties in their briefs
refer to the “2003 conviction.” Applicant was indicted on June 20, 2001 and pled guilty sometime
later (the record is unclear on when). Applicant was originally sentenced on November 5, 2001.
Applicant subsequently appealed her sentence and the federal appellate court affirmed Applicant’s
sentence on May 14, 2002. See U.S. v. Warrell, 40 Fed.Appx. 425, 2002 WL 987359 (9th Cir. May
14, 2002) (Not for Publication).
3
We answer the retroactivity issue for two reasons. First, we need to determine which
choice of law to apply to answer the ultimate question on whether or not Applicant’s conviction
that was used as an enhancement was “final.” Second, there are several other cases that are being
held pending a resolution of this retroactivity question. We filed and set the case in order to settle
this statewide recurring issue.

2
applies. 4 See Teague v. Lane, 489 U.S. 288, 307 (1989). 5 Applicant argues Pue applies

retroactively. We agree.

Holding Texas law applies for determining finality of a conviction for the purposes

of enhancement in cases prior to Pue, we apply Texas law, not Federal law, to determine

whether Applicant’s federal conviction was final. We hold that Applicant’s federal

conviction was final under Texas law and deny Applicant relief.

Whether Pue announced a new rule.

4
We apply Stovall instead of Teague when determining the retroactivity of a state statute.
Salinas v. State, 523 S.W.3d 103, 112 (Tex. Crim. App. 2017) (citing Taylor v. State, 10 S.W.3d
673, 681 (Tex. Crim. App. 2000) (“[W]e adopt the Stovall balancing test for determining whether
new rules of non-constitutional origin should be given retroactive effect.”) (Stovall v. Denno, 388
U.S. 293, 297 (1967)). Stovall and Teague employ different frameworks to determine retroactivity.
Both frameworks start with the threshold question on whether the rule is new. And both have
distinct tests to determine whether a rule is considered new. See n. 6.
5
When we filed and set this case, we made a citation to Teague. To clarify, we currently
apply Teague in our state habeas practice when determining retroactivity of constitutional rules.
See e.g. Ex parte Maxwell, 424 S.W.3d 66, 70–71 (Tex. Crim App. 2014) (“Although the United
States Supreme Court held in Danforth v. Minnesota [552 U.S. 264 (2008)] that state courts need
not utilize the Teague retroactivity rule, we follow Teague as a general matter of state habeas
practice, and we will not deviate from our precedent in this instance.”). Maxwell dealt with
determining the statewide retroactive application of the Supreme Court of the United States’
holding that “the [U.S.] Eighth Amendment forbids a sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders.” Miller v. Alabama, 567 U.S. 460, 479
(2012).
While this case was pending, the Supreme Court decided Edwards v. Vannoy, 141 S.Ct.
1547 (2021) (stripping watershed procedural rules from retroactivity on federal collateral review).
Since we do not apply Teague in the instant case, we do not address the appropriateness of
continuing using Teague and its progeny as a guide for determining whether a constitutional rule
is retroactive for state habeas practice. The Supreme Court narrowing of retroactivity in federal
habeas review in Vannoy, creates a question on whether this Court should continue applying
retroactivity rules designed for the shrinking doors of federal habeas review. See also Jeffrey S.
Sutton, 51 Imperfect Solutions (2018); Ex parte Lave, 257 S.W.3d 235, n. 15 (Tex. Crim. App.
2008) (“But the Teague rule is also grounded in principles of comity and deference to state courts,
which have no application in state habeas corpus jurisprudence.”).

3
We first ask whether Pue announced a new rule. If the rule was not new, then

retroactivity applies automatically, including the instant writ. However, if Pue announced

a new rule, then we proceed to the next question on whether it applies retroactively via a

Stovall balancing test.

To determine whether this Court announced a new rule, the interpretation of the

criminal statute must have been a “clear break” with the past. Taylor v. State, 10 S.W.3d

673, 682 (Tex. Crim. App. 2000). The new interpretation must have been preceded by an

inconsistent interpretation viewed as authoritative. “To be viewed as authoritative, the

inconsistent interpretation must be either (1) a rule articulated in prior precedent from this

Court, (2) a practice arguably sanctioned in prior cases from this Court, or (3) a

longstanding practice that lower courts had uniformly approved.” Nix v. State, 65 S.W.3d

664, 671 (Tex, Crim. App. 2001), abrogated on other grounds by Wright v. State, 506

S.W.3d 478 (Tex. Crim. App. 2016). 6

Neither of the first two sufficient conditions are met here, because the Court never

addressed the statutory interpretation question prior to Pue. There were only two cases

where this Court opined on this general area—Ex parte Blume and Diremiggio v. State. 618

6
We apply the test articulated in Nix because this case deals with the interpretation of a
state statute—not with the interpretation of a constitution. Teague uses a distinct framework to
determine whether a constitutional rule is new. “In general, however, a case announces a new rule
when it breaks new ground or imposes a new obligation on the States or the Federal
Government. . . . To put it differently, a case announces a new rule if the result was not dictated
by precedent existing at the time the defendant's conviction became final.” Teague, 489 U.S. at
301 (emphasis in original). The State correctly points out that the Teague test for determining if a
rule is new is “less stringent” than the Nix test. State’s Br. at *12. A holding is not dictated by
precedent “unless it would have been ‘apparent to all reasonable jurists.’” Chaidez v. United States,
568 U.S. 342, 347 (2013) (quoting Lambrix v. Singletary, 520 U.S. 518, 527–28 (1997)).
4
S.W.2d 373 (Tex. Crim. App. 1981); 637 S.W.2d 926 (Tex. Crim. App. 1982) (Panel No. 1). And

as we explained in Pue, those cases were “stretched to stand for the proposition that if it is

good enough for them, it is good enough for us.” Pue, 552 S.W.3d at 233. Thus, Pue was

the first time this Court specifically provided an authoritative interpretation on which law

to use for determining finality of a non-Texas conviction.

This leads us to the third sufficient condition to determine if there is a “clear

break”—whether there was a longstanding practice uniformly approved by lower courts.

At the time Pue was decided, only five courts of appeals had held (less than half of all the

appellate districts in Texas) that an out-of-state conviction is final for enhancement

purposes if it was final under the law where the conviction occurred. 7 Two more appellate

districts issued similar rulings but left them unpublished so they would not have a

precedential effect. 8 Less than half of the Courts of Appeals publishing opinions is not

7
Pue cited to seven courts of appeals decisions that applied foreign law for determining
the finality of a foreign conviction: Ramos v. State, 351 S.W.3d 913, 915 (Tex. App.—Amarillo
2011, pet. ref'd); Ajak v. State, No. 07-14-00018-CR, 2014 WL 3002811 (Tex. App.—Amarillo
2014, no pet.) (mem. op.; not designated for publication); Dominque v. State, 787 S.W.2d 107,
108–09 (Tex. App.—Houston [14th Dist.] 1990, pet. ref'd, untimely filed; Moore v. State, No. 05-
10-01306-CR, 2012 WL 858606, at *9. (Tex. App.—Dallas March 12, 2012) (not designated for
publication); Skillern v. State, 890 S.W.2d 849, 883 (Tex. App.—Austin 1994, pet. ref'd), declined
to follow on other grounds by Ex parte Jones, 440 S.W.3d 628 (Tex. Crim. App. 2014); Dunn v.
State, No. 14–05–00276–CR, 2006 WL 8432982, (Tex. App.—Houston [14th Dist.] August 17,
2006, pet. ref'd) (not designated for publication); Mitchell v. State, No. 05-06-01706-CR, 2008
WL 713635 (Tex. App.—Dallas March 18, 2008) (mem. op.; not designated for publication). Pue
at 231, n.21.
The State also notes additional court of appeals cases that did not apply the Pue rule: Lee
v. State, 582 S.W.3d 356, 365–66 (Tex. App.—San Antonio 2018, pet. ref'd); Brown v. State, 508
S.W.3d 453, 460 (Tex. App.—Fort Worth 2015, pet. ref'd); Jordan v. State, No. 01-13-00721-CR,
2015 WL 6768497, at *8 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op.; not
designated for publication). State’s Br. at *10–11, n.3.
8
See TEX. R. APP. P. 47.7 (stating that an opinion designated as “Do Not Publish” has no
precedential value).
5
enough, in our judgement, to constitute a “longstanding practice that lower courts had

uniformly approved.” Finding no authoritative statewide interpretation prior to Pue, we

hold that Pue did not announce a new rule and is therefore automatically retroactive.

Applying the Pue rule to determine the finality of Applicant’s federal conviction.

Because we hold our laws determine the finality of a non-Texas conviction to all

cases prior to Pue, the next step is to apply Texas law to determine whether or not

Applicant’s federal conviction was final. We hold that Applicant’s federal conviction was

final under Texas law and was a proper enhancement for Applicant’s instant conviction.

Therefore, we deny relief.

As Pue explained, “[t]he imposition of the sentence is required to establish the

finality of the conviction” under Texas law. 9 And under Texas law, when a defendant

appeals, “a conviction . . . is not considered to be a final conviction until the conviction is

affirmed by the appellate court and that court's mandate of affirmance becomes final.”

Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App. 1986).

Applicant was sentenced to 10 months imprisonment and 5 years of supervised

release. The term of supervised release was part of the sentenced imposed, and not a

suspension of the sentence. All of Applicant’s appeals were exhausted and mandate issued

9
“It is well established that under Texas law only convictions that are ‘final’ can be used
for enhancement purposes. It is equally well established that a conviction is not final for
enhancement purposes where the imposition of sentence has been suspended and probation
granted. A successfully served probation is not available for enhancement purposes. The
imposition of a sentence is required to establish the finality of a conviction. However, a probated
sentence can turn into a final conviction if probation is revoked.” Ex parte Pue, 552 S.W.3d. 226,
231 (Tex. Crim. App. 2018) (quotations and citations removed).

6
before she was arrested for the offense under question here. Applicant was originally

sentenced by a federal judge on November 5, 2001, and an appellate court subsequently

affirmed the sentencing on May 20, 2002. Therefore, we hold Applicant’s federal

conviction arising out of Alaska was final prior to her committing the instant offense. It

was a proper enhancement.

Conclusion.

We hold the Pue rule, that Texas law determines the finality of a foreign conviction

for enhancement purposes in Texas, applies retroactively. We find Applicant’s federal

conviction to be final applying Texas law. We deny relief.

Delivered: May 1, 2024

Publish

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